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See detailRetour de demandeurs de protection internationale déboutés: défis et bonnes pratiques
Sommarribas, Adolfo UL; Dionisio, Linda UL; Marcus, Noemie UL et al

Article for general public (2017)

Cette note de synthèse présente les principaux résultats de l’étude réalisée en 2016 par le Point de contact luxembourgeois du Réseau européen des migrations intitulée « Retour de demandeurs de protection ... [more ▼]

Cette note de synthèse présente les principaux résultats de l’étude réalisée en 2016 par le Point de contact luxembourgeois du Réseau européen des migrations intitulée « Retour de demandeurs de protection internationale déboutés: défis et bonnes pratiques ». L’étude se situe dans le contexte de l’accroissement récent des demandes des personnes en recherche de protection et des demandeurs de protection internationale (ci-après dpi) déboutés. Elle s’intéresse plus particulièrement aux raisons qui font que les dpi déboutés ne peuvent ou ne veulent retourner ainsi qu’aux mesures adoptées par les États Membres pour faciliter et encourager les retours. [less ▲]

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See detailReturning Rejected Asylum Seekers: Challenges and good practices
Dionisio, Linda UL; Marcus, Noemie UL; Sommarribas, Adolfo UL et al

Report (2016)

The issue of non-return of rejected international protection applicants does not enjoy a high political profile on its own, but has been discussed as part of a global debate on asylum. Significant efforts ... [more ▼]

The issue of non-return of rejected international protection applicants does not enjoy a high political profile on its own, but has been discussed as part of a global debate on asylum. Significant efforts are required when considering the wide spectrum of possible reasons of non-return, some reasons depending on the countries of destination, others on the returnee himself/herself. In this respect, reasons of non return range from the non-respect of deadlines, the issuance of travel documents, postponement of removal for external reasons to the returnee, for medical reasons, the resistance of the third-country national and the lack of diplomatic representation of Luxembourg, to name but a few. In regards to the procedure, in Luxembourg the rejection of the international protection application includes the return decision. The Minister in charge of Immigration, through the Directorate of Immigration, issues this decision. The return decision only becomes enforceable when all appeals are exhausted and the final negative decision of rejection of the competent judicial authority enters into force, as appeals have suspensive effects. This decision also sets out the timeframe during which the rejected international protection applicant has to leave the country. In case the applicant does not opt for a voluntary return, the decision will also include the country to which s/he will be sent. In general, the decision provides for a period of 30 days during which the applicant has the option to leave voluntarily and to benefit from financial support in case of assisted voluntary return through the International Organization for Migration (IOM). There are two exceptions to this rule: the applicant who is considered a threat to national security, public safety or homeland security and the applicant who has already been issued a return decision before. The declaration and documentation provided during the procedure of international protection can be used to facilitate return. Subsequent applications are possible, in particular if new evidence of facts appears resulting in an increased likelihood of the applicant to qualify for international protection. For rejected international protection applicants who did not opt for voluntary return and did not receive any postponement of removals, a certain (limited) support is available while waiting for the execution of the enforceable return decision. As such, they continue to stay in reception facilities and to receive certain social benefits unless they transgress any internal rules. If an urgent need exists, rejected applicants may be granted a humanitarian social aid. However, they are not entitled to access the labour market or to receive ‘pocket money’ or the free use of transport facilities. They benefit from an access to education and training, however this access cannot constitute a possible reason for non-return. These benefits are available to rejected applicants until the moment of their removal. In order to enforce the return decision and prevent absconding, the Minister may place the rejected international applicant in the detention centre, especially if s/he is deemed to be obstructing their own return. Other possible measures include house arrest, regular reporting surrendering her/his passport or depositing a financial guarantee of 5000€. Most of these alternatives to detention were introduced with the Law of 18 December 2015 which entered into force on 1st January 2016. As a consequence, detention remains the main measure used to enforce return decisions. A number of challenges to return and measures to curb them are detailed in this study. A part of these measures have been set up to minimize the resistance to return from the returnee. First and foremost is the advocacy of the AVRR programme and the dissemination of information relating to this programme but also the establishment of a specific return programme to West Balkan countries not subject to visa requirements. Other measures aim at facilitating the execution of forced returns, such as police escorts or the placement in the detention centre. Finally, significant efforts are directed towards increasing bilateral cooperation and a constant commitment to the conclusion of readmission agreements. No special measures were introduced after 2014 in response to the exceptional flows of international protection applicants arriving in the EU. While the Return service within the Directorate of Immigration has continued to expand its participation to European Networks and in various transnational projects in matters of return, this participation was already set into motion prior to the exceptional flows of 2014. As for effective measures curbing challenges to return, this study brings to light the AVRR programme but especially the separate return programme for returnees from West Balkan countries exempt of visa requirements. The dissemination of information on voluntary return is also considered an effective policy measure, the information being made available from the very start of the international protection application. Among the cases where return is not immediately possible, a considerable distinction has to be made in regards to the reasons for the non-return. Indeed, in cases where the delay is due to the medical condition of the returnee or to material and technical reasons that are external to the returnee, a postponement of removal will be granted. This postponement allows for the rejected applicant to remain on the territory on a temporary basis, without being authorized to reside and may be accompanied by a measure of house arrest or other. In cases of postponement for medical reasons and of subsequent renewals bringing the total length of postponement over two years, the rejected applicant may apply for a residence permit for private reasons based on humanitarian grounds of exceptional seriousness. Nevertheless, apart from this exception, no official status is granted to individuals who cannot immediately be returned. Several measures of support are available to beneficiaries of postponement to removal: they have access to accommodation in the reception centres they were housed in during their procedure, they may be attributed humanitarian aid, they continue to be affiliated at the National Health Fund, they continue to have access to education and professional training and they are allowed to work through a temporary work authorization. The temporary work authorization is only valid for a single profession and a single employer for the duration of the postponement to removal, although this is an extremely rare occurrence in practice. OLAI may allocate a humanitarian aid might be allocated if the individual was already assisted by OLAI during the procedure of her/his international protection application. All of these measures apply until the moment of return. The study also puts forth a number of best practices such as the Croix-Rouge’s involvement in police trainings, their offer of punctual support to vulnerable people through international networking or the socio-psychological support given to vulnerable people placed in the detention centre among others. A special regard has to be given to AVRR programmes and their pre-departure information and counselling, the dissemination of information and the post-arrival support and reintegration assistance. Indeed, stakeholders singled the AVRR programme out as a best practice and the Luxembourgish government has made voluntary return a policy priority for a long time. However, this increased interest in voluntary returns has to be put into perspective as research shows that sustainable success of voluntary return and reintegration measures is only achieved for a very restricted number of beneficiaries (namely for young, autonomous and dynamic returnees with sizeable social networks and who were granted substantial social capital upon return). Hence, returning women remains a sensitive issue, especially if they were fleeing abusive relationships. Another factor contributing to hardship set forth by research is the difficult reintegration of returnees that have lived outside of their country of return for a prolonged period of time and are therefore unable to rely on social networks for support or for a sense of belonging. Based on these considerations, NGOs and academia cast doubts on the ‘voluntary’ nature of these return programmes, their criticism targeting the misleading labelling of these policy measures. [less ▲]

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See detailChanges in Immigration Status and Purpose of Stay
Becker, Fabienne UL; Dionisio, Linda UL; Li, Lisa UL et al

Report (2016)

Section 1 offers an overview of the Luxembourg immigration legislation which provides for the possibility to switch between categories of authorisations of stay in Article 39 of the amended Law of 29 ... [more ▼]

Section 1 offers an overview of the Luxembourg immigration legislation which provides for the possibility to switch between categories of authorisations of stay in Article 39 of the amended Law of 29 August 2008 on the Free Movement of Persons and Immigration (hereafter referred to as Law on Immigration). Third-country nationals wishing to stay in Luxembourg for more than three months are required to apply for an authorisation of stay before arriving in Luxembourg. The third-country national applying for a permit for more than three months has to submit to a medical examination before requesting the delivery of the permit. After the medical exam, a certificate is delivered detailing whether the third-country national fulfils the conditions of entry to the territory or not. This certificate has to be enclosed to the residence permit application. The third-country national must also fulfil conditions pertaining to his/her registration in the municipality of his/her future residence as well as appropriate accommodation.In regards to changes of statuses, the third-country national with an authorisation of stay for more than three months has the possibility to apply for a different permit provided s/he fulfils the conditions for the category of permit s/he is aiming to change to. The Law on Immigration sets up this principle in its Article 39 (3) and excludes from its application the following categories: students, trainees, volunteers, au pairs and pupils. The rationale behind those exceptions is that those permits are considered temporary by definition, as they are linked to an activity which is limited in time.A special provision, Article 59 of the Law on Immigration, allows young graduates after the expiry of their student permit to change into the category of salaried worker and have a first work experience in Luxembourg for the limited, non-renewable, duration of two years. After this period the third-country national has to return in his/her country of origin. This provision and its conditions were debated by stakeholders during the elaboration of the Law on Immigration, concerns surrounding the limit of two years’ work experience or the limiting condition of having a contract linked to the diploma obtained in Luxembourg were mentioned. Article 59 is however the result of a compromise between fostering a young graduate’s capabilities with a first work experience and provide for a possibility to fill the gap in the Luxembourg workforce on one hand and on the other mitigate the risk of brain drain for the third-country national’s country of origin.Other considerations to allow for switches between categories of statuses were of humanitarian nature, such as Articles 76 (family member), 89 (1) (authorisation of stay for exceptional reasons), 98 (victim of human trafficking) and 131 (2) (medical reasons) of the Law on Immigration. These articles aim to increase the autonomy and legal security of vulnerable third-country nationals. Section 2 details the different statuses taken into account for the purpose of the present study. The table under question 1 also contains categories that do not exist as such in Luxembourg legislation: the separate category of highly qualified worker was replaced by the European Blue Card with the implementation of the Law of 18 December 2011,the categories of business owner, seasonal workers, intra-corporate transferee and investor do not exist autonomously, but third-country nationals falling under these categories are nonetheless covered by other existing statuses. However, a modification of the current legal framework is under way in order to create the categories of intra-corporate transferees and seasonal workers.Therefore the relevant categories of statuses for Luxembourg at this point in time are family member, education (student), researcher, European Blue Card, salaried worker, self-employed worker, international protection applicant, victim of trafficking in human beings, private reasons, athletes, au pairs and beneficiaries of medical treatment. The authorisation of stay for exceptional reasons was included in this study even if not considered a category of stay.Section 3 delves more specifically into the subject matter of the present study and introduces more in detail the changes of statuses that are possible from within the country. The present study excluded from its scope the change into long-term resident, which is the most common change of status in Luxembourg. Several changes, while theoretically possible, are also unlikely to take place in practice as they would lead to a loss of rights for the concerned third-country national. This loss of rights applies to switches into the categories of students, pupils, volunteers, trainees, au pairs, seasonal workers, posted workers and international protection applicants. As a consequence, the main changes of statuses in practice concern the categories of Family member, salaried worker, European Blue Card, Self-employed and Private reasons.The special consideration given to third-country nationals in vulnerable situations, such as victims of trafficking in human beings or third-country nationals with an authorisation of stay for medical reasons, may obtain a permit for private reasons and, if they engage in a full-time salaried activity, may later switch to salaried worker without having to submit to the labour market test.The study also presents the different actors on a national level that might be confronted with changes of statuses as well as the different channels of communication that are available to circulate the information to third-country nationals. The concerned actors may vary from one category of permit to the next, however the Directorate of Immigration will be involved in nearly every case. The Chamber of Commerce also has a part to play in changes into self-employed workers. The main channel of communication, aside from office hours of institutions dealing with migration, is the website www.guichet.lu which centralises all the relevant information.Taking as a basis the different comments during the elaboration of the Law on Immigration as well as interviews conducted with different stakeholders for the purpose of this study, these changes of statuses are generally perceived in a positive light, with several actors, such as the Chamber of Commerce or Fondation Caritas, arguing in favour of lighter requirements to allow for such switches, especially where changes for humanitarian grounds are concerned.The topic of changes of statuses of immigration has not as of yet attracted interest in Luxembourg. There is no data or study available on the topic and it has not triggered any large debate on the national level.Nevertheless, Section 4 puts forward a number of good practices. In fact, whenever the Directorate of Immigration or another organisation providing advice on immigration, notices a possibility for a third-country national to obtain a permit that is more favourable, this will be brought to the attention of the concerned person. The Directorate of Immigration has also proven flexibility and understanding in situations including children. Alternative solutions are also provided by the Directorate of Immigration when a holder of the authorisation of stay for medical reasons falls into irregularity. A further notable good practice is the extensive support provided to third-country nationals aiming to change into self-employed worker by the Chamber of Commerce. Finally, the constant information sharing between the relevant actors consists a good practice with enormous potential as it draws the discussion into practical concerns faced with the implementation of the Law on Immigration. [less ▲]

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See detailINTERNATIONAL MIGRATION IN LUXEMBOURG: Continuous Reporting System on Migration OECD - Luxembourg
Nienaber, Birte UL; Dionisio, Linda UL; Sommarribas, Adolfo UL et al

Report (2015)

Migration has always played an important role in Luxembourg’s history. In 2014 and 2015, due to the refugee crisis, migration became the focus of the economic, social and political debates, in particular ... [more ▼]

Migration has always played an important role in Luxembourg’s history. In 2014 and 2015, due to the refugee crisis, migration became the focus of the economic, social and political debates, in particular during Luxembourg’s Presidency of the Council of the European Union. As a country that is a founding Member of the European Union and located at the centre of the EU, Luxembourg has a strong attraction for EU citizens and this - in turn - has a direct incidence on the demographic composition of the country and the workforce. Luxembourg’s demographic composition reflects its migratory diversity. In 2014, the net migration balance was positive having increased by 6.8% in comparison to 2013. As such, the country’s rising population numbers were mainly attributed to the immigration of individuals coming from EU Member States and other European countries. These numbers include European Union (EU), European economic area (EEA) citizens and third-country nationals from non-EU European countries. The country’s diversity is equally reflected in its labour market which heavily relies on its foreign workforce. In fact, Luxembourgish citizens represented 31% of the workforce in 2014, while EU citizens reached 65% and third-country nationals only 4%. Cross border workers also represented a very important part of the Luxembourgish workforce with 44.4 %. Due to the refugee crisis, the number of international protection applicants increased between 2013 and 2014. As a consequence, the recognition rate of the status increased as well. On the other hand, the number of returns continued to decrease. In order to respond to the crisis in an adequate manner, additional funds and staff for the Directorate of Immigration and the Luxembourg Reception and Integration Agency were allocated. Given the magnitude of the migration crisis and the pressure on external border Member States, the EU Council took the decision to relocate 160.000 international protection applicants (European relocation scheme) who are currently in Greece and in Italy. In order to implement this decision, Luxembourg agreed to welcome 527 international protection applicants. The first group of 30 relocated individuals from Greece arrived in Luxembourg on 4 November 2015. During 2014, Luxembourg implemented several EU directives. Directive 2011/36/EU of 5 April 2011 on preventing and combating trafficking in human beings was implemented by the Law of 9 April 2014, which reinforced the rights of victims of trafficking in human beings by criminalising begging and the trafficking of children. Extensive work was undertaken to transpose Directives 2012/32/EU and 2012/33/EU of the Common European Asylum System. Two draft bills are currently within the last stages of the legislative procedure and their implementation is set to take place in 2015, after several amendments were brought to the draft bills at the end of September and October 2015. On the national level, recent legislative changes and reforms answer to several aims, ranging from attracting certain categories of migrants to strengthening the support provided to unaccompanied minors. The creation of a new authorisation of stay for investors and the modification of certain authorisations of stay to adapt them for business managers are currently under discussion by an inter-ministerial working group, which is preparing two draft bills on these issues. [less ▲]

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